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The Supreme Court has entered its final stretch of the term, with about two dozen opinions to hand down before the justices flee for their summer break at the end of June. At Slate, we call this mad dash to the finish line “Opinionpalooza,” and we approach it with equal parts fascination, skepticism, and dread every year. These remaining cases have massive implications for democracy, civil liberties, and the fundamental question of who gets to be an American; they include disputes over birthright citizenship, voting rights, immigration, and executive authority. Many will test Donald Trump’s ability to collapse the separation of powers into an autocratic presidency with no real limits on his rule. The justices will likely impose some restraints on Trump’s supersized monarchical ambitions in the weeks ahead, especially when they threaten judicial supremacy. All told, however, they will still hand him more victories in his larger assault on constitutional constraints. And where the ambitions of the MAGA wing of the court dovetail with Trump’s goals, Trumpism will run the table.
On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern kicked off Opinionpalooza by discussing the court’s dangerous game of enabling the president right up until he imperils its own prerogatives. An excerpt of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: The Supreme Court keeps aligning with Donald Trump on this maximalist view of the imperial presidency, both in front of the curtain and behind it. For every case on the merits docket that gives Trump a big win in public, there are shadow docket cases that do the same in secret. It feels like any appearance of conflict between the president and the court is stage-managed, with lots of invisible wires we don’t always pay attention to.
Mark Joseph Stern: This is one reason why, if the justices do strike down his attack on birthright citizenship, nobody should say: “Look, they’re putting Trump in his place! He’s really not a king!” Because there are so many other cases where the court is absolutely making him a king. It’s allowing him to consolidate so much power in the executive branch and specifically in the person of the president, and to run roughshod over all of these checks and balances that Congress enacted to prevent a monarchical or authoritarian president from abusing his power. And the Supreme Court is almost entirely aligned with Trump on this stuff, especially over the shadow docket, where that consolidation continues.
John Roberts does this magic trick: Do something small, get people accustomed to it, then do it big. We’ve seen this pattern in cases over the years where the Supreme Court makes a tiny tweak to prepare the country for when you later do the big thing. Then it’s less of a surprise and almost looks like it flows logically from when the court did it in a lesser way. The shadow docket has become the way you do that now, right? You seed the ground on the shadow docket and say: “Well, this is the law now.” This process used to take four or five years—do it small, wait a couple terms, then do it big. Now, with the shadow docket, you can do it within the same term, and make it look as though it’s inevitable or inexorable.
It leads to this interplay between the shadow docket and the merits docket. Roberts’ great gift is that he’s a master of optics and PR. He must know there was a huge outcry against the incredibly fast pace with which questions were being decided on the shadow docket: If Trump wanted something, the court saw it as an emergency; it assumed the president was always harmed, but ignored harm to the other parties. This second half of the term, there has been a pumping of the brakes on deciding big, existential questions over the shadow docket. Why is that?
I have a very cynical view of this: It’s less that the court has learned its lesson or become more solicitous toward lower court judges, and more that the court already accomplished a huge amount of what it wanted in terms of giving Trump what he sought. Trump came in and had expansive ideas about the scope of his executive power—impounding federal funds, firing executive officials, rewriting immigration laws—and by and large, the Supreme Court let him do it. The conservative supermajority issued all these shadow docket orders clearing the way for that to happen. Now it has happened; Trump’s takeover of the federal government is largely complete. So I just don’t think the court needs to issue nearly as many shadow docket orders as it did during that shock-and-awe campaign; it has already achieved its objectives.
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The other piece of this is that for a while, there was this tussle between lower courts and the Supreme Court. SCOTUS would issue a shadow docket decision that seemed to overturn decades of precedent without explanation. The lower courts would assume they still had to follow that precedent until it was overruled, rather than guess what a cryptic shadow docket order meant. Then the Supreme Court spanked them for it and said: How dare you keep applying actual law? You should be reading our minds and guessing what we want. And what they wanted, more or less, was for Trump to win.
There is a simplistic story we hear that it’s the Supreme Court versus Donald J. Trump. And Trump likes to pander to that story by having a tantrum when he doesn’t get his way, like in the tariffs case. And I want to think through what part of that story is true, and what part of it is just serving the interests of the court and the president. It looks like when the conservative supermajority’s agenda aligns with what Trump wants, the court goes full steam ahead. We saw that in Callais and in the slipstream of what has happened since Callais. Then, in the handful of cases where the court pushes back on Trump’s prerogatives, it’s to affirm its own supremacy.
So what the court keeps doing is not just reaffirming maximalist views of executive power for Trump, but reaffirming its own maximalist power to be the decider at the end of the day. Does that put the lie to the whole story everyone wants to tell about John Roberts versus Donald Trump? And by giving Trump so much of what he wants so often—sometimes racing to do it on the shadow docket—does the court in fact embolden him in a way that imperils its own ability to someday say no to an important question in the future, because it’s squandering whatever authority it actually has to say no?
In the places where the court draws the line, it’s almost always to defend its own prerogatives and power and remain the decider. And I think there is real danger in only ruling against him in cases that genuinely threaten judicial supremacy. The conservative justices risk giving Trump such an assumption of victory that when he does lose, he might not accept it. He might say: What power do you have to enforce this decision against me? We got a taste of this dynamic when the Supreme Court let him fire all these different members of independent agencies, but warned him not to go after the Federal Reserve. Of course, Trump then tried to fire a member of the Fed! He could not stay within the one red line that the court drew for him. That should concern the Republican-appointed justices more than it evidently does.
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It’s the classic predator response, right? Yes means yes while no means try harder, or try in a different way. And the court continues to conduct itself as though Trump is a rational actor who will hear a no as a no.
Well, we have seen the Supreme Court reward the Trump administration for defying district court orders over and over again. It has gotten a real taste for defiance of court orders. There is no clear reason why that should stop with the Supreme Court—why, eventually, the administration won’t just say: Hey, it worked all these other times, it should work this time. The conservative justices seem to have this smug and arrogant assumption that even if they let Trump defy lower courts, he’ll always abide by their decisions. I think that that is very contestable. I would be far more concerned that Trump will decide: They’ve made me a king, so I’m going to act like one.
Then we really will have a constitutional crisis, except the court will have squandered what capital it had to say no and have it be taken seriously.
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